Comfort Animals: What Obligations do Business Owners and Landlords Have?
You may have noticed an increase in emotional support or comfort animals being brought into your businesses, onto airplanes or into properties you own. As more and more people rely on these animals to help treat mental illnesses, we have seen an increase in inquires from clients who wonder about their obligations with respect to a customer or tenant’s comfort animal. For this reason, we are including a few frequently asked questions you may find helpful. Do not hesitate to contact us for more specific guidance related to your business or properties.
1. How is a service dog different from a comfort animal?
Under the Americans with Disabilities Act, a service animal is a dog that has been individually trained to do work or perform tasks for an individual with a disability. While Massachusetts only allows dogs to serve as service animals, other states allow small horses as well. Service dogs can go anywhere the public is allowed to go and may or may not wear special collars or harnesses.
Emotional support animals (also called therapy, comfort or companion animals) do not have to be dogs, do not have to be specifically trained and are defined as animals who have a positive effect on individuals with a disability. For example, a cat whose presence alone helps to alleviate an owner’s anxiety symptoms could be an emotional support animal.
2. As a business owner, do I have to let comfort animals into my business?
In Massachusetts, emotional support animals do not have the protections service animals have and are not automatically entitled to access public places, such as businesses. It is important to note that other states do give emotional support animals the same protections service animals have.
3. As a landlord, can a tenant keep a comfort animal in my building if the building has a “No Pets” policy?
Under the Fair Housing Act, a provider of housing has an obligation to make reasonable accommodations to allow comfort animals in housing as an exception to a “no pets” policy. The fact that another tenant is afraid of the animal or is allergic to the animal does not change this obligation. While a landlord is not technically required to allow a comfort animal if it would result in an “undue hardship” to the landlord, proving an “undue hardship” is difficult and there is little precedence supporting such an argument.
4. If a tenant wants to keep an emotional support animal, what must a tenant do?
If a tenant wishes to keep an emotional support animal, the tenant must first obtain permission to have the animal in the residence, requesting a reasonable accommodation to any “no pets” policy. The tenant may be required to provide documentation that the animal is needed although this documentation can be as simple as a note from a therapist explaining that such an animal may be beneficial in helping to manage or treat the tenant’s mental illness. The landlord cannot charge an extra fee to the tenant for having an emotional support animal but can charge the tenant for any damage done by the animal.
5. If a landlord refuses to allow a tenant’s comfort animal, what recourse does the tenant have?
If a tenant believes they have been subject to housing discrimination based upon their disability, a person may file an administrative complaint with the Massachusetts Commission Against Discrimination (MCAD) or can file a private lawsuit in Superior Court. After the MCAD has determined an unlawful practice has been committed, the MCAD may award the complainant damages including expenses incurred by the complainant for obtaining alternative housing, storage of goods, moving expenses and other costs actually incurred as a result of the unlawful practice. Injunctive or other equitable relief, attorneys’ fees and costs and civil penalties may also be assessed.
6. What can a landlord do to protect their property if an emotional support animal is present?
A landlord can and should develop an animal policy for the building, which sets out rules for pets. Such rules may include but are not limited to: cleaning up after the animal, confining the animal to the tenant’s unit, prevent laundering animal linens or blankets in shared laundry facilities and following any and all state and local licensing requirements for the animal.
If nothing else, our hope that our clients pause before making an adverse decision with respect to support animals belonging to their business clients or residential or commercial tenants. Should you have questions about your specific situation, do not hesitate to call.
Carolyn Dibbert, Esq.
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